HC Deb 31 October 1980 vol 991 cc879-916

Order read for resuming adjourned debate on amendment to Question [3 December], That this House gives leave for reference to be made in future Court proceedings to the Official Report of Debates and to the published Reports and evidence of Committees in any case in which, under the practice of the House, it is required that a petition for leave should be presented and that the practice of presenting petitions for leave to refer to parliamentary papers be discontinued.—[Lord James Douglas-Hamilton.]

Which amendment was: In line 1, insert after 'House' 'while re-affirming the status of proceedings in Parliament confirmed by Article 9 of the Bill of Rights'.—[Mr. Christopher Price.]

Question again proposed, That the amendment be made.

9.35 am
Mr. Michael English (Nottingham, West)

Even in this House it must be somewhat unusual to have one's speech rudely interrupted at 11.30 pm on 3 December 1979 and be required to resume it at 9.35 am on 31 October 1980.

I must protest to you, Mr. Speaker, about the extreme difficulty in obtaining all the relevant reports and papers for the debate. I took the precaution of going to that excellent part of the Clerk's Department, the Journal Office, which is the repository of our precedents. It kindly prepared me a paper giving all the references to all the various outstanding Select Committee reports to which I referred at the beginning of my speech last December.

At that time the issue came on to the Floor late at night and there was considerable difficulty in obtaining copies of the relevant Select Committee and other reports. It should not be true that, nearly a year later, it is still difficult to obtain them. One difficulty is that the Stationery Office persistently produces only a tiny number of copies of documents produced by the House, runs out of print, and does not reprint them. The result is that it is impossible to obtain those documents from the Vote Office. In this instance the Vote Office has done its best and in one case has obtained a Controller's copy from the Stationery Office. But I am still without three reports.

The Library copies, both here and in another place, have disappeared. They are probably in the Chamber. I think one of them is possibly sitting on the Opposition Front Bench. I have been unable to obtain the first report from the Joint Committee on the Publication of Proceedings in Parliament, the second report from the Joint Committee on Sound Broadcasting 1976–77, and the third report from the Committee of Privileges of that same Session. That is not good enough. I hope that you, Mr. Speaker, will take that on board and, in your capacity as Chairman of the House of Commons Commission, will ensure that all documents which should be available for a debate are available, particularly for a debate of such intimate concern to all hon. Members of the House because of its relationship with the courts.

After 10 months there can be no excuse for the documents not being available to all Members of the House. I strongly suggest to the Leader of the House that it is his responsibility.

The Chancellor of the Duchy of Lancaster, Leader of the House of Commons and Minister for the Arts (Mr. Norman St. John-Steyas)

The hon. Gentleman is no doubt right in principle about the documents. However, as I look around the Chamber, it appears that his point is rather academic. A few copies of the document should suffice for the number of Members present.

Mr. English

I am not complaining about the small number of the right learned Gentleman's troops. In the cir- cumstances in which we understand the Cabinet to be at present, it is hardly surprising that his supporters have fled.

Mr. S. C. Silkin (Dulwich)

Does my hon. Friend agree that the House makes up in quality for what it lacks in quantity?

Mr. English

It certainly makes up in Opposition numbers what it lacks in Government numbers. The Government supporters seem——

Mr. St. John-Stevas

They were listening to the hon. Gentleman yesterday.

Mr. English

I am glad that the right hon. Gentleman put it in such terms. I hope that they always listen to me. Last night I was trying to defend their interests against the Government Chief Whip, and I think that they were listening. Indeed, my information came from the right hon. Gentleman's Back-Bench supporters. However, we would be irrelevant if we were to stray into such pastures.

The real cause of the trouble this morning is the first report from the Committee of Privileges, Session 1978–79. It is an extremely short report, containing only two paragraphs, and it is perhaps worth reading them because it is the report that is most immediately germane to this debate. It says: Your Committee have examined the circumstances in which it is alleged that the Official Report of Debates was quoted in the course of the trial of Aubrey, Berry and Campbell at the Central Criminal Court in November 1978. They are indebted to Mr. Speaker for supplying them with copies of a letter addressed to him by the trial Judge, accompanied by the official shorthand writer's transcript of the relevant parts of the proceedings. Your Committee fully accept that, on the facts as intially disclosed to Mr. Speaker, this was a proper case for their consideration, and the more so since it has given them an opportunity to examine the rules and practice of the House in this regard. However, from these documents they are satisfied that neither the Judge nor Counsel for the Crown made use of the Official Report in a manner which could affect the privileges of the House. The practice of the House which prevents reference to the Official Report in Court proceedings except after leave given in response to a petition appears to have developed out of the Resolution of 26th May 1818 which in terms merely requires the leave of the House to be granted for the attendance of its servants to give evidence in respect of the House's proceedings. The Resolution continues to provide an essential protection for the House in the matters to which it strictly relates, but Your Committee consider that no purpose is served by its extension to the requirement of leave merely for reference to be made to the Official Report. They believe that the provisions of Article 9 of the Bill of Rights, reinforced by the care taken by the courts and tribunals to exclude evidence which might amount to infringement of parliamentary privilege, amply protect the House's privilege of freedom of speech. Your Committee accordingly recommend that the practice of presenting petitions for leave to make reference to the Official Report in Court proceedings be not followed in the future and that such reference be not regarded as a breach of the privileges of that House. My first complaint about the report is, indeed, its brevity. One would think from it that almost nothing else had ever been considered. There is no reference in it to any of the many Select Committees on the law of privilege, some of them Joint Committees and some of them restricted solely to this House. Strictly speaking, the report is inadequate in that regard. For the moment, I am concerned not with its recommendations but with the fact that it has not considered the whole issue of the publication of proceedings in Parliament in the way in which other Select Committees of this House and Joint Committees of both Houses have done as well as a committee outside this House.

It is, therefore, wrong that that alone should be the subject of our discussion today. It is desirable that there should be discussion on the law of privilege in this House, and I would have hoped that the Leader of the House would allow us to have such a debate today, above all on the report known as the Donovan report, the official title of which is the Second Report of the Joint Committee on the Publication of Proceedings in Parliament, House of Commons No. 261, House of Lords No. 109.

That report considered every important aspect of the subject matter and produced recommendations. It was an eminent Committee. It was originally chaired by Lord Pearce and subsequently by Lord Donovan. Lord Stow Hill and the Earl of Selkirk were members of it, both in their time eminent lawyers, and Lord Stow Hill was a Cabinet Minister. My right hon. and learned Friend the Member for Dulwich (Mr. Silkin) was also a member, as well as an eminent QC, Sir John Foster, a former well-known Member of this House, and myself.

In passing, I must pay tribute to the late Lord Donovan for the efficiency of his drafting of that report and its predecessor. There were two reports, and I know that he drafted one of them over a weekend. It was a fairly short report. I do not think that any member of the Committee, when we came to meet after that weekend and saw the draft report, had any criticism of substance of it, as I am sure my right hon. and learned Friend will bear out. We discussed all these issues at great length. Perhaps the most important recommendation of that report was that there should be a redraft of the definition of Proceedings in Parliament.

As my hon. Friend the Member for Lewisham, West (Mr. Price) has pointed out in his amendment, which I believe the Leader of the House said that he would accept, the Bill of Rights precludes anything that we say here being impeached or questioned in any court or place out of Parliament. My hon. Friend is right to remind us of that. One of the reasons why the Leader of the House is so ready to accept his amendment is, I think, simply that it does not really add anything to the existing law.

The weakness of the existing law is that no one can define with any great precision what a proceeding in Parliament is. It can be defined, and it is in Lord Donovan's report. It should be defined by statute, but it should be remembered that the Donovan Report was a Joint Committee report, because the law of Parliament is a possession of both Houses. We as a House of Commons may interpret the law of Parliament, as may another place, but it is one body of law and in this context it relates to proceedings in either House.

Mr. S. C. Silkin

Does my hon. Friend agree that it is not so much the difficulty of defining proceedings in Parliament—probably those who drafted the Bill of Rights are pretty clear about it—but rather that the passage of time has extended the influence of the House and the activities of hon. Members to such an extent that we need to bring the whole matter up to date?

Mr. English

I agree. My right hon. and learned Friend will realise that as I was speaking I corrected my first phrase.

In this immediate context it is worth quoting from the Donovan report. It said: Since these proceedings are expressly made the subject of absolute privilege by the Bill of Rights it is important, alike for Members of either House, and for members of the public, to have as clear an idea as possible of what are, and what are not, proceedings in Parliament'. It then goes on to say: When the framers of the Bill of Rights used the expression 'proceedings in Parliament' in 1688, and did so in the same context as 'debates' it is probable that they had in mind a fairly simple conception of an assembly where debates were followed by resolutions or bills and the proceedings were not marked by much complexity. In such a situation the need for a definition of proceedings in Parliament might not have been felt. Matters are very different today when Parliament conducts much of its business through Committees of different kinds which may at times sit elsewhere than in the Palace of Westminster and when procedures have been invented which were unknown in Stuart times. The proceedings and usages of Parliament today are dealt with in a standard work", to which it goes on to refer.

The Committee arrived at a suggested definition, which was: For the purpose of the defence of absolute privilege"— and for the benefit of those who may not be lawyers I should perhaps refer to the word "privilege". When we talk about absolute or qualified privilege, we do not mean some panoply of elitist parliamentarians. It has nothing to do with Parliament in this context. Privilege in this context is a conception of the law of defamation, and any person can be protected in his words from an action for defamation. He is usually protected by what is called qualified privilege, but in certain circumstances there is a conception of absolute privilege that applies to words said in this House. The privilege is not restricted to Parliament. It is nothing to do with Parliament. It concerns the law of defamation. Because we have a strict law of defamation by comparison with, say, the United States, it means that there are circumstances when people, whether Members of Parliament or not, should be capable of saying what they wish to say without the prospect of being sued for libel or slander and damages being obtained against them.

Mr. S. C. Silkin

I am sorry to interrupt my hon. Friend again, but I am sure that he will recollect that that was one of the principal reasons why the Committee on the law of privilege—of which I had the honour to be Chairman—proposed that in future, from 1967, we should refer to the contempt of this House rather than to a breach of privilege, so that the two concepts of privilege should not be confused. The House has honoured that to a substantial extent, but not invariably. I think that it should be completely honoured, and I am sure that my hon. Friend will agree.

Mr. English

I wholly agree with my right hon. and learned Friend. One of the things that we have not done is to change the ancient name of the Committee of Privileges. To call it the "Committee of contempt" might possibly be regarded as inappropriate.

I think I have made my point that the word "privilege" in this context is no special right of Parliament or Members of Parliament. It is general to large sections of the public in relation to the law of defamation and protects them from being sued if the interests of society as a whole are regarded as more important than the right to sue in defamation of a particular individual.

I return to the Donovan committee's suggested definition of proceedings in Parliament. It states: For the purpose of the defence of absolute privilege in an action or prosecution for defamation the expression proceedings in Parliament shall without prejudice to the generality thereof include: (a) all things said done or written by a Member or by any officer of either House of Parliament or by any person ordered or authorised to attend before such House". In passing, I may remark that there is more need to protect people who give evidence before the modern Select Committees. In one case an individual suffered in his employment for giving evidence to a Select Committee. Certainly no one should be in any danger of any proceedings in a court of law because of his statements before a Committee of this House. The report continues: in or in the presence of such House and in the course of a sitting of such House, and for the purpose of the business being or about to be transacted, wherever such sitting may be held and whether or not it be held in the presence of strangers to such House; provided that for the purpose aforesaid the expression House shall be deemed to include any Committee sub-Committee or other group or body of members or members and officers of either House of Parliament appointed by or with the authority of such House for the purpose of carrying out any of the functions of or of representing such House; and (b) all things said done or written between Members or between Members and officers of either House of Parliament or between Members and Ministers of the Crown for the purpose of enabling any Member or any such officer to carry out his functions as such provided that publication thereof be no wider than is reasonably necessary for that purpose. In this section Member means a Member of either House of Parliament; and "officer of either House of Parliament" means any person not being a Member whose duties require him from time to time to participate in proceedings in Parliament as herein defined. Advisers to Select Committees would be covered by this proposed definition, as they should be. It cannot be right and proper for our advisers to be in danger of being sued for their advice.

I do not suppose that the Bank of England would sue if one of our advisers on the Treasury Committee said that the Bank of England was incompetent, but if that was said outside this House the Bank of England might conceivably have a right of action for defamation. Our advisors must have a right to make such statements without the prospect of being sued. They should not be subjected to the possibility that a Jimmy Goldsmith might issue a writ and drag them into court even when they have a clear defence. They would have wasted a considerable amount of time and money—as Private Eye did—to defend themselves from possibly malicious action. That is the reason for the protection of our words here. But it is not sufficient that our words alone should be protected. Our advisers must be protected and they must be free to say what they think is the case.

I note that my hon. Friend the Member for Lewisham, West has now acquired some of the missing reports.

The Donovan committee's second report was published in May 1970. It is now over 10 years since the report was published and nothing has been done about it; as far as I am aware, it has not even been debated.

The other issue covered by the question of the definition of "proceedings" is how one may write to a Minister and how he may reply. A Minister may be covered by privilege, but a Back-Bench Member may be sued for defamation. I shall not go into that now, but the fact remains that there are all these lacunae in the conception of the protection of proceedings in Parliament that we are now discussing.

This report has never been discussed. I sometimes think—I have some reason for doing so—that one of the reasons is that some hon. Members on both Front Benches, on successive Front Benches, are not as skilled or expert as Lord Donovan was in understanding the meaning of the law and how it should be altered. It is not good enough that a report of a Joint Committee of both Houses, consisting of people of some eminence—Law Lords, Queen's Counsel and so on—who took great care to get the matter right, as they saw it, should then be totally ignored and not even discussed. I understand that Governments may need to find time for legislation such as that proposed in the report, but that the report should not even be discussed, and that the House should not be allowed to express an opinion as to whether such legislation is desirable, is totally wrong.

There is also the possibility that one of these days a case will arise slap within the holes that we thought should be plugged and we shall then ask why it had not been thought of before. For us to waste a morning, possibly a whole day, discussing a tiny matter such as whether a lawyer can quote from Hansard in court and not discuss the basic issue of what are the proceedings reported in the Official Report—or in some cases not reported in the Official Report because some are the proceedings of Select Committees or outside committees—is like picking up a twig and not noticing that it has fallen from a tree of some substance.

This is a complete waste of time. I do not wholly blame the Leader of the House. I blame him partially now because he has been aware of this matter for 10 months and we are still not discussing all the reports. But the Committee of Privileges must take some share of the blame because it produced a report which related solely to the use of the Official Report of debates in court pro- ceedings and did not refer to all the other Committees which have considered this subject.

Sir Derek Walker-Smith (Hertfordshire, East)

As the House may recall, I have no right to speak further in this debate, and, indeed, have no desire to do so, because I made my defence of the Committee's report and actions as long ago as 3 December last year, which was the first round, as it were, of this debate. Therefore, I hope that the hon. Member for Nottingham, West (Mr. English) will forgive me for putting this point to him by way of intervention.

The hon. Gentleman is making a most interesting contribution to the question of privilege or contempt arising in proceedings of this House. The hon. Gentleman is no doubt right to use this occasion to explore these wider matters and to express his regret that they are not made the subject of more formal discussion in the House. I acquiesce in all that, but I must part company from him if he is to criticise the conduct of the Committee of Privileges in its approach to this question in the report.

The hon. Gentleman, in his colourful and appropriate metaphor, said that the Committee grasped the twig and neglected the tree. But that is all that it is entitled to do. The Committee of Privileges, by the custom of the House, deals only with the question expressly referred to and defined in the motion which forms its jurisdiction. It is not for the Committee of Privileges, whatever the temptation may be, to usurp the jurisdiction of the House and embark on questions wider than those defined in its terms of reference. Whatever blame may be due in any quarter—in all probability, the two Front Benches over some decades share the blame; I can speak with some objectivity because it is two decades since I sat on the Front Bench—the Committee of Privileges is blameless in this matter. The Committee had a narrow remit and it dealt faithfully with that remit. It is not the Committee's fault that the remit was not wider.

Having said that, I hope that the hon. Gentleman will acquit the Committee of Privileges of blame in this matter. I wholly endorse his plea that arrangements should be made by those in whose power such arrangements lie to enable us to have an informed, in-depth discussion of the more general matters to which he was interestingly referring.

Mr. English

I am grateful for the support of the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith). I agree with him about what the Committee of Privileges should be doing. It should be acting in a quasi-judicial capacity considering a particular question and arriving at what might loosely be called a verdict or judgment upon it. I am sure that the right hon. and learned Gentleman is right. My objection is that in this instance the Committee went further and recommended a change in the law. It is not usual, as I am sure the right hon. and learned Gentleman with his legal experience knows, for a judge to say "This is what I have decided, but I do not like having decided it. Therefore, will you please change the law?"

Sir D. Walker-Smith

Perhaps the Master of the Rolls, for example?

Mr. S. C. Silkin

I agree entirely with the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith). Referring to the point that has just been made by my hon. Friend the Member for Nottingham, West (Mr. English), I point out that it has always been the practice, and it is well recognised in "Erskine May," for the Committee of Privileges to deal with matters of procedure which are directly consequential to the remit before it. That is all that it did in this instance. It dealt in a quasi-judicial way with the facts of the complaint made to it. That put it in mind of the general question of the petition procedure, and it was perfectly proper and within the normal practice of the Committee of Privileges to go on to say that it was time that the practice was changed.

Mr. English

I am sure that that is right. The Committee of Privileges does that. We have an example of its happening in the first report. Equally, I am aware that a judge will often say "I do not like the decision that I have just reached. Will Parliament please change the law?"

In this instance the Committee of Privileges is doing something very like that. But if the Committee goes beyond giving a verdict on the matter before it and says that the law should be changed, it behoves the Committee to find out what it is and to look at other recommendations that there may be on that point. That was not done in the First Report. It was either too long or too short. It was too long in the sense that it went beyond giving a verdict on a particular matter and suggested a change in the practice of the House.

As my right hon. and learned Friend the Member for Dulwich said, the Committee is entitled to do that. But in that respect the Committee's report was too short because it failed to notice, or, if it noticed, it failed to mention, all the other relevant reports of Select Committees. The Journal Office furnished me with a list of nine relevant reports. I do not suggest that every word in those nine reports is relevant to this issue, but there are relevant paragraphs in nine reports relating to this matter to which reference was not made by the Committee of Privileges.

As the right hon. and learned Member for Hertfordshire, East and my right hon. and learned Friend the Member for Dulwich said, the Committee of Privileges is entitled to go beyond giving a verdict. But, if it does, it should do it properly. In this instance the Committee went beyond giving a verdict and thereby recommended a small change in a large body of law relating to the publication of proceedings in Parliament. I think that is wrong. The right hon. and learned Member for Hertfordshire, East is nodding agreement. Perhaps he now understands what I am getting at when I say that the Committee of Privileges has some share in the blame for the situation in which we find ourselves.

I should be happy if the Leader of the House, in reply to the debate, were to say that he would try to arrange a day, half a day or whatever period is necessary in the forthcoming Session to discuss the outstanding reports on the law of privilege. That seems a modest request after 10 years. There are always low-key times in the proceedings of the House—for example, this week and next week whilst we are waiting for another place to produce its amendments to Bills that we have already sent to it—when a debate on a subject such as this can be fitted in. Therefore, I should be happy if the right hon. Gentleman were to say that he would find a day to discuss these reports in the widest possible terms. We do not need a specific resolution. A "take note" motion covering eight reports, or whatever the number may be, would give us the opportunity for a broad discussion so that my right hon. and learned Friend the Member for Dulwich and others might have their say and we could at least get it moving.

This complete stagnation is not a good advertisement for the House of Commons, for Parliament generally or for our system of government. When eminent people—experts, in this case—consider these issues and then are totally ignored and nothing happens, one must blame the Government machine for this inertia and stagnation. It is something that needs dealing with, and it has not been dealt with. There were plenty of opportunities in the last 10 years for it to be dealt with.

I come to how the issue arose, which is highly relevant to this subject. It arose long before the ABC case. It arose far back in the early 1960s when we were first considering the broadcasting of the proceedings of the House. We are now in the interesting situation that in this context a court will be able to take a tape recording of our actual words as said in the House and, if the motion is passed, it will also be able to refer to the Official Report and it will discover that they are different. They are different for a very good reason, because the Official Report is what it claims to be. It is a tidied-up report. It has sub-editors, and a Member has the right to correct his words within a limited range, to which I shall come shortly.

I must pay a considerable tribute to the people who produce our Official Report. In most of the world, official reports of such proceedings are produced many days, sometimes weeks, after the events to which they relate. Fortunately, this slovenly habit has not prevailed here. The Official Reporters prepare within an hour the text that is then sent to the printers, and, one hopes, if it is before a reasonable time of night, that it will appear upon our breakfast tables in the morning. It has not been doing that during the last 12 months, but that is because of some difficulties with the Stationery Office, not with our Official Reporters.

At the point that they are dealing with it, if he is quick enough an hon. Member can go to the Official Reporters' room and can make modest corrections. Some of them are just of punctuation, which of course would not appear on the tape anyway. Others can be matters of some substance. I corrected two speeches that I made yesterday. I came across a mishearing by a Reporter of something that I had said. It was a completely different word. "Resolution" had appeared in place of the word "recommendation". It is understandable. They both begin "re" and they both end "tion". It is quite understandable how that could happen. Had I not gone and corrected it, that would presumably have gone to the printers and appeared in today's Hansard. I have not yet looked at today's Hansard. It was rather late at night. It may even be that the original uncorrected version has appeared. But that would have gone to the printers and it would have been incorrect.

By comparing them with the tape, one could have possibly ascertained that I said "recommendation" and not "resolution". Conceivably, that could have been done and could be done in a court of law. Perhaps it would not be possible to do it, because these are Tannoy microphones—a public address system originally. The quality of resolution of words is not as good as it might be. This is something at which I think our Committee on Broadcasting is looking. So it might be that if the tape were played over in a court of law the word might come out as a sort of mumble beginning "re" and ending "tion", and no one might be able to determine whether I said "resolution" or "recommendation".

I use that just as an illustration, but clearly there is the possibility, if the motion is passed, that one day a court of law will be entitled to compare the Official Report, as printed, with the tape. I point out that at present the courts can refer to a tape. The Leader of the House might well consider that it is in support of his proposal today that courts should be able to consider a printed text if they can already consider a tape.

Let me explain why they can consider a tape. It is because the tape is not produced by us. The tape is produced by Tannoy, a private company, and made use of by the BBC and by Independent Radio News and other broadcasters. As far as I know, therefore, the copyright in that tape, for example—although copyright is not strictly relevant to whether a court could require its production—is in the hands of Tannoy. The BBC thinks that it is in the hands of the BBC; Tannoy thinks that it is in the hands of Tannoy. But one thing that is certain is that it is not ours, because successive Leaders of the House have not got around to dealing with this issue.

Long since, among the eight or nine committees to which I have referred—eight Committees of the House and one outside—this issue has been considered, and it was recommended by the very first Committee on Broadcasting the Proceedings that the tape should be prepared by Officers of the House, in the way in which the Official Report is prepared by Officers of the House, and that then everyone should be able to make use of the tape but that the copyright would be in our possession. The answer given to that was that there was no body of Members in whom the copyright could be vested. But there now is such a body, the House of Commons Commission, which is a corporate body set up by statute, which could have the copyright vested in it. There is no doubt that this could now be done. But again, because of neglect on the part of successive Administrations, this has been neglected. The tape is actually the possession of a private company, Tannoy.

There are eminent lawyers sitting in the House who may disagree, but as far as I can see there is nothing to stop a court of law requiring the production of that tape in court if it is relevant to the proceedings of the court. I do not think it can be said to be covered by a privilege of the House. I suppose that the Committee of Privileges could, if it felt like it, decide that it was, because in a sense the House of Commons commissioned Tannoy to produce the tape or allowed Tannoy to do so. I do not think that we commissioned Tannoy to do so; I think that we merely permitted Tannoy to do so. I suppose that the Committee of Privileges could regard it as covered by privilege, but I do not think that it is. Other hon. Members may wish to comment on that matter.

As I understand it, any court of law could currently require the production of that tape, listen to our proceedings and make reasonable use of them within the provision of the Bill of Rights. I think that that partly supports the case which no doubt the right hon. Gentleman will be putting forward.

Clearly, if the court of law could hear our proceedings as we actually said the words, there seems at first sight little reason to say that it could not consider the printed text in the Official Report. But the problem that would then arise is that they are not the same. They are the same in substance or should be, but they may not be the same in precise detailed facts, and sometimes those precise details may be important.

Clearly, for example, the way in which a sentence is said can be relevant to the meaning of that sentence. I am sure that hon. Members will recollect Leo Ross's book—or Rosten's; he uses both names—"The Uses of Yiddish", where there is a sentence which, said as neutrally as possible, is as follows: You want to me buy two tickets for your daughter's concert. He then goes on to point out how, by emphasising different words in that sentence, one can produce a different meaning: You want me to buy two tickets for your daughter's concert? You want me to buy two tickets for your daughter's concert? You want me to buy two tickets for your daughter's concert? —the implication in the last case being that the lady cannot sing. Clearly, in that regard the tape perhaps can convey more meaning than the printed text in Hansard.

Mr. Deputy Speaker (Mr. Bryant God-man Irvine)

Order. It appears to me that the hon. Gentleman is endeavouring to debate what is contained in one or more of these reports. That is not in fact what this debate is about. I ask him to confine himself strictly to the motion before the House.

Mr. English

With respect, Mr. Deputy Speaker, I think that that is what I was trying to do. I was pointing out that at present the courts can consider the tape of our proceedings. Under this motion they would be able to refer to the Official Report of our proceedings, which is the subject that we are discussing. I was pointing out that the two may differ and that the Committee of Privileges, and, as far as I know, the Leader of the House, in his earlier remarks in this debate, do not seem to have discussed what should then happen, because the passage of the resolution would allow that comparison to take place in a court of law, which at the moment it cannot do without our permission.

It can happen now on a given occasion if we permit reference to the Official Report, but we are now considering whether we should genuinely permit reference to the Official Report, and, because of the neglect of all the earlier committees, neither aspect of this matter has been considered. The aspect of the protection around the tape recording of the proceedings has not been considered—it has been considered by committees but not by the House—and neither has the question of what is a proceeding in Parliament to which the tape relates and to which the Official Report relates. That is one of the principal difficulties in this case. However, I want to turn to another.

Let us assume that, by one means or another, after the passage of the resolution, something comes to be discussed in court. I do not think that we have adequately considered why a court should need to refer at all to the Official Report. Let me try to explain what I mean. In the Official Report a Member makes a given statement. That cannot, to quote the Bill of Rights, be impeached or questioned in a court. I do not know exactly what those words mean. It would be very interesting to determine what they mean.

I think we all understand that one cannot bring an action founded upon words said in this House. That is clear. But the word "questioned" could be taken to have a more extended meaning. I would appreciate the comments of the learned lawyers who are listening to the debate. Is it, for example, to be possible for learned counsel in an action to say to a Member whom he is cross-examining "You have made in this court statement A, but in the House of Commons you said the exact opposite. You are a liar?" It may not be possible to bring an action against the Member of Parliament. It is not necessarily possible to bring an action against anyone merely for being a liar. But clearly the statement made in the House of Commons is there being questioned, and "questioned" is the term used in the Bill of Rights. Is that feasible?

Mr. Christopher Price (Lewisham, West)

I agree with my lion. Friend that in this issue the meaning of the word "questioned" is crucial. One of the cases quoted in the report of the Committee of Privileges that we are discussing is the Church of Scientology of California versus Johnson Smith of 1972. In that case a Member of this House was sued for something that he said outside the House, and the church that was suing him attempted to adduce things said inside the House in order to back up its case. The Attorney-General, then Sir Peter Rawlinson, now Lord Rawlinson, intervened as amicus curiae to try to make clear to the court that one could refer to things but one could not question them. I agree that it is a narrow dividing line, but it is a very difficult one.

Mr. English

That is the principal problem with the resolution, apart from the one that I have mentioned concerning the possibility of comparison with another form of report of our proceedings.

A grave difficulty is likely to arise. We all know that the resolution that is before us was before the Committee of Privileges. Every lawyer in court in the ABC case was busily quoting from the Official Report without having the right to do so. That was then raised as a contempt of this House and referred to the Committee of Privileges, which agreed that it was a contempt of this House and decided that the law should be changed in this way. If people are to act in a way that is clearly against the law at the present time, it is quite possible, if we pass the resolution, that they will go beyond this narrow boundary of reference to the proceedings and start to question a statement in the proceedings.

Sir Derek Walker-Smith

I hasten to say that I am not purporting to respond to the hon. Gentleman's invitation to eminent lawyers to give guidance, but I am a practising lawyer. There is a further dichotomy that is worth considering in this context. The hon. Member for Nottingham, West (Mr. English) and the hon. Member for Lewisham, West (Mr. Price)—I am pleased to see him on the Front Bench and I hope that his place there will be of a more permanent nature—have both restricted their consideration to the citation of the Official Report of the House in relation to matters of factual evidence, but there is a dichotemy because, in so far as there is a prohibition, that also extends to the interpretation of the law.

It so happens that I had an experience of this sort in the Court of Appeal between our two debates on the matter. I told the Court of Appeal that I would try to assist it by reading a passage from the Official Report—something said by a Minister—that, in my view, would assist it in the interpretation of the law. Lord Justice Lawton very properly said "Are we entitled to hear this?" I agreed that it was delicate ground but I suggested that there was a distinction between passages cited purely for the purpose of the interpretation of the law and passages cited which might raise more difficult and delicate issues in matters of factual evidence such as have been canvassed by the two hon. Members.

Lord Justice Lawton was good enough to say that he would accept it, as it were, de benee esse and added that if he was wrong he would be prepared to run the risk of appearing at the Bar of the House. I told his Lordship that it would not be quite like that; that he would have first to come to the Committee of Privileges, and that if that were so I would hope, with our roles reversed, to treat him with the same consideration and kindness as he habitually treats me.

This is a very important aspect—less dramatic than that with which the hon. Member for Nottingham, West, is concerned—because it raises the whole question whether we should adapt our method of interpreting the law in this country by admitting the principle of reference to les travaux préparatoires, which is quite usual in many places and relevant now that we have joined the Community. The hon. Gentleman and I can have our views about that. We are to some extent, therefore, subject to the jurisdiction of the European Court, where the principle of les travaux préparatoires operates. So there is a dual significance to this matter and I hope that the hon. Gentleman will agree that this question of the interpretation of the law should also be pursued.

Mr. English

I am very grateful to the right hon. and learned Gentleman for those remarks, because obviously they are relevant. Serendipity, I think, is the happy art of pottering along between debates and arriving at some relevant fact. The right hon. and learned Gentleman is clearly right. It is an interesting point and again perhaps supports the right hon. Gentleman's case that it is possible that if some part of our proceedings were relevant in a Common Market case before the European Court, or before the European Court of Human Rights, our words could be quoted now in any event. The law of the Common Market, or the law of the European Convention on Human Rights is, in a sense, superior to our law. Such bodies would be entitled to consider the words that a Minister used when introducing a measure, and would be able to refer to the Official Report or the Votes and Proceedings whether or not our existing parliamentary rules say that they can do so.

In this context, our parliamentary rules do not apply to courts in the United Kingdom. They do not apply to the European Court. The right hon. and learned Gentleman's point is therefore relevant, although it tends to support the case that, if a European court can consider our proceedings, United Kingdom courts should also be able to do so. If we were to stray into that interesting line of thought—in which, I believe, the Roman law principle is the better one—you, Mr. Deputy Speaker, would rule me out of order. We are discussing what should happen in United Kingdom courts.

If it is the case, as it was in the ABC trial, that lawyers can refer to our proceedings as if they had a right to do so—and until this resolution is passed they have no such right—just because they are unaware that they had no such right, they could be unaware of other aspects of the law of Parliament. If there were a right to refer to the Official Report in any way, lawyers might not realise that they are allowed only to do that. I have already quoted the simple case in which an hon. Member's veracity is impugned by means of a comparison between something that is said in the Chamber and something that is said outside the House. Although one might hope that the two statements were not contradictory, they might well differ. An hon. Member can say something in the House of Commons knowing that he cannot be taken to a court of law and sued for defamation. One might legitimately not say quite the same thing outside the House, because somebody could issue a writ and take that hon. Member to court for defamation. That is why many hon. Members make statements in the House that can be taken up by the press, but will not repeat those remarks outside the House. As we all know, it is a quite common occurrence, sometimes justifiable and sometimes not.

This resolution will open the door to the possibility of lawyers thinking that they can use the Official Report as they would use any other document in court, and that they can make comparisons with other documents. I do not blame lawyers. They are not necessarily experts in the law of Parliament, although they may be expert in criminal law or conveyancing. Unless they are also Members of Parliament, lawyers are not usually experts in the law of Parliament.

The Bill of Rights does not say that. It says that no words said here can be questioned in court.

It is against the law and contrary to statute for anybody to stand up in a court of law and to say, "Mr. Jones MP, you didn't tell the truth in your speech in the House of Commons last week". Nevertheless, it is likely to happen. The Bill of Rights is clear. Unless one interprets the word "question" in a more limited sense than it normally has in English, even in seventeenth century English, someone will eventually stand up in court and say that to a Member of Parliament or, more probably, to a witness to one of our Select Committees. That witness may not be an expert in the law, and he will not realise that he is entitled to refuse to answer. Only someone learned in the law and a Member of Parliament would realise that. The person being cross-examined would have the right not to answer. He could say "I am sorry, you cannot question that statement. It was made in Parliament before a Select Committee, and you cannot question my statement, nor can you say that I am a liar. The Bill of Rights states that you cannot question that statement." How many people will know that?

I am trying to interpret the law. The number of decided cases on that section of the Bill of Rights is very small. One person's guess is as good as another's. If a layman gives evidence to the Select Committee, how is he to know that the Bill of Rights exists and may be relevant? He may be faced by a lawyer who also does not understand the situation and who will say "You said one thing in this court and you said another to the Select Committee. You are a liar". I submit that that cannot be done. Whatever conclusion we may reach, the Bill of Rights forbids that. Nevertheless, the resolution opens the possibility of such things being raised in court.

The only adequate way of dealing with the situation is to revise the law as the Donovan committee suggested. It would have been better to deal with all the outstanding questions of privilege and to have included this in that package. I do not object to the resolution in principle. It may be worthy of consideration. Most of the Select Committees to which I have referred did not consider it in the exact way that the Committee of Privileges considered it. Lord Donovan was aware of this issue, but many of the Select Committees considered publication of proceedings but did not consider publication in relation to a court of law.

Hitherto, most of the Committees that considered the publication of our proceedings considered whether members of the press, for example, should be entitled to report our proceedings. Many years after our proceedings began to be published, it remained a law of Parliament that it was a contempt of Parliament to publish our proceedings. We have got rid of that, but many discussions on that question have been held in that context rather than in that of publication in a court of law. It is dangerous for that very reason to deal with the little bit and ignore the bigger bit, namely, publication of our proceedings and the question of what those proceedings involve. That is by no means clear, although it could be made so.

Whatever the outcome today, the Leader of the House should arrange to have a general debate on the whole question. It might result in the law being tidied up. I referred to the eight Select Committees, and it might appear that the House of Commons, or the House of Commons and the other place, decide such matters to suit themselves. That is not so. The Faulks committee was a committee on defamation. Although Lord Ballantrae and Lord Keith are, strictly speaking, Members of Parliament—unless they happen to have Irish peerages—most of the members of that committee were not Members of Parliament. They were eminent in their fields, especially the law, but they were not generally Members of Parliament. The committee was chaired by Mr. Justice Faulks. Because they were not parliamentarians, the committee members could have taken a quite different view of our privileges. They might have said, but they did not, that parliamentarians were recommending a set of changes that were biased in their own favour. But in fact they did not do that.

In paragraphs 26 and 27 of what I call the report of the Donovan Joint Committee, it recommended that proceedings in Parliament should continue to be protected by absolute privilege. It said that this should be defined by statute in the terms and for the reasons given in paragraphs 20 to 30 of the Joint Committee's report. The Faulks report then goes on to give the definition and concludes by saying: We agree that the term 'proceedings in Parliament' should be defined by statute and we agree with the definition proposed by the Second Report of the Joint Committee. Given that there was some cause for delay in considering these issues while the Faulks committee considered the whole of the law of defamation, which is most relevant to this, it is still a fact that the Faulks committee reported in 1975 and there have been five years since then when this issue has not been dealt with at all. It should be dealt with and it is about time that it was. But this is not the way to go about it. The way to go about it is not to deal with one tiny aspect of the question of publication of our proceedings and ignore the broader question of the fact that the law is archaic and needs tidying up. I shall not go into all the ways in which it needs tidying up or I shall be ruled out of order.

There is an old legal adage that hard cases make bad law. It may be a hard case that the Committee of Privileges had to decide, in accordance with precedent, that this was a contempt when its members did not think that it should have been, but that is a perfect example of a hard case making bad law. If this motion is passed and we still neglect the whole question of publication of our proceedings, we are in grave danger of causing many more problems and troubles in the future.

If, on the other hand, this resolution is passed and we are assured that within a reasonable time there will be a debate on the whole question of privilege in this matter of publication of proceedings, no particular harm will have been done. I strongly commend to the Leader of the House that he should bring forward these outstanding reports and recommendations. He does not need necessarily to commit the Government to supporting the recommendations in all these reports or any-think like that, but he should bring them forward so that the House has an opportunity to discuss them and to consider the issue as a whole and not just one tiny part of it.

10.45 am
Mr. S. C. Silkin (Dulwich)

The House will be very much indebted to my hon. Friend the Member for Nottingham, West (Mr. English) for his very careful, valuable and interesting tour d'horizon on the whole subject of this motion and allied matters. It is in no spirit of disrespect to him that I promise the House I shall do my best not to emulate the length of his addresses on these matters—28 minutes last December, coupled with 70 minutes' overtime this morning. I hope that from his position off stage the Leader of the House is keeping one ear open to what I am saying.

I strongly endorse the submission of my hon. Friend the Member for Nottingham, West that it is long past the time when the House should give its attention to the report of the Donovan committee. I always regarded the most important aspects of that report to be the recommendation to set at rest the doubts created by the Strauss case and to make clear that communications between hon. Members and Ministers concerning matters of relevance and importance to their parliamentary duties and equally the reply of Ministers to Members should be as absolutely protected as questions and answers across the Floor of the House. That was put in grave doubt by the rather strange proceedings in the Strauss case and has remained in doubt ever since. Having regard to the present duties of Members of Parliament, it is of the utmost importance that they should be able to take up a constituent's case entirely freely and without risk of action for defamation. Equally, Ministers should be able to reply with the same freedom and frankness.

It is a matter of great regret—and I share responsibility for this because I was a member of the Government for part of the time when legislation could have been brought in—that no Government have acted—

Mr. St. John-Stevas

The right hon. and learned Member was a distinguished member of the Government.

Mr. Silkin

I am sure that the Leader of the House will not wish to anticipate his reply to the debate from a recumbent position.

We did not give our attention to that very important question. It has been reported, I hope with accuracy, that on another occasion outside this House the Leader of the House said that we are due for a fairly light legislative Session. If that is so, there should be ample time to bring in legislation of this kind to put right something of considerable importance to the duties of hon. Members.

My hon. Friend the Member for Nottingham, West criticised the Privileges Committee for not going into the wider matters. He himself gave an answer to that criticism and, indeed, gave the Government a let-out from what I have just proposed when he referred to the report of the Faulks committee on defamation generally.

If the Privileges Committee had gone into the broad question of the Donovan committee and the matters contained in the other reports, such as broadcasting, its deliberations might have been so long that it would never have been able to report to the House before the general election. The Leader of the House may say that, if the Government were to be asked to bring forward legislation on that one fairly narrow point arising out of the report of the Donovan committee, that would be prejudicing the whole question of reform of the law of defamation arising out of the report of the Faulks committee. It is a narrow point. No doubt it could be dealt with by a Private Member's Bill. If that happens, I hope that the Leader of the House will give every assistance to the private Member who brings it forward. None the less as we have been promised a light legislative Session, I see no reason why it should not be promised as a Government Bill. It would not take long. It would cure an evil that has for too long affected the way in which hon. Members discharge their duties.

I shall try not to emulate my hon. Friend the Member for Lewisham, West (Mr. Price) in speaking for 29 minutes as he did on the previous occasion. He has now been translated sideways into a position of responsibility. He will no doubt discharge his new functions with all the responsibility that we know he is capable of. I shall not attempt to reply, therefore, to the criticism that he made of me without giving me the conventional notice of his intention to do so, but I must deal with the substance of what he said.

Mr. Christopher Price

I assure my right hon. and learned Friend that he need feel no inhibition about not having given me notice. I have been given notice that it will not be possible for me to make a speech today, since objection will be taken to anything that I may say. He may feel free to speak as fully as he likes.

Mr. Silkin

I am grateful to my hon. Friend, but I shall exercise the restraint which it is well known that I possess.

On the previous occasion, the Leader of the House very properly said that he was prepared to accept my hon. Friend's amendment. I shall not object to it, although I do not believe that it adds a jot or tittle to the position. However, it does no harm. If it will facilitate our proceedings and get the main motion passed, by all means let us add it.

We are primarily discussing the motion based on the first report of the Committee of Privileges. One important matter has been overlooked. The motion before the House follows the recommendation of the first report that the practice of presenting petitions for leave to make reference to the Official Report in court proceedings be not followed in the future and such reference be not regarded as being the privilege of the House, but it goes no further than that. It merely seeks to clarify the position and declare clearly that it is not a contempt of the House, and will not be treated in the future as a contempt of the House, to refer to the proceedings in Hansard. As the Leader of the House said on the previous occasion, in addition it covers Committee proceedings.

Neither the report of the Committee of Privileges nor the motion goes further and deals with the matters referred to in the last few paragraphs of the evidence of the then Clerk of the House at paragraphs 37 and 38 of his memorandum, which are of importance. He said: If the Committee and the House were inclined to dispense with the present procedure, there is one last difficulty to consider, namely the question of proof of the published documents of the House. He commented that the Journal of the House can already be used as evidence without proof, but we are not dealing here with the Journal. He continued: But unless the parties are prepared to agree a document without proof (as I understand can be done in criminal causes as well as civil causes), the court may require proof if one party objects to the production of the document without it. Proof of House documents can only be given by an Officer of the House, etc., and at present the resolution of 1818 … forbids any officer, etc., to do so without leave of the House. He suggests ways in which that could be obviated, provided that the House agrees to do so, by amending the resolution of 1818.

The Privileges Committee did not adopt that suggestion. Its proposal is much more limited. It in no way affects the resolution of 1818. Therefore, if this motion is passed, it will still be the position that, if it is necessary for an officer of the House to give evidence before a court in order to prove the contents of Hansard or the report of a Committee, leave of the House will be required. It is only in the circumstances where the court agrees, the parties having already agreed, that those matters may come before the court relevant to the proceedings, and there is no objection to their being produced without formal evidence, that the motion standing in the name of the Leader of the House will affect the matter.

The consequence of that, as I understand it, is that, if any party to the pro- ceedings objects to a reference to Hansard or a report of a Committee or the learned judge takes the point that he requires it to be formally proved, the procedure under the resolution would be required, unless, of course, as the distinguished former Clerk says, the matter can be proved aliunde. In some circumstances it may well be that it could be proved by ordinary evidence by someone who was present at the time and took a note of the proceedings in question.

Many of the dangers that have been referred to in allowing this to happen are unreal. The procedure can arise only where all the parties and the learned judge are in agreement that no harm can be done by reference to these proceedings without their having to be formally proved by some person who was present at the time.

Mr. English

My right hon. and learned Friend appears to be saying that it does not matter very much, because other things have not been changed. However, I remind him of the well-known adage about the thin end of the wedge. Will he address his mind to the tape recordings, which I believe are the possession of Tannoy? Presumably an official of Tannoy would have to bring the tape to a court. It may be that the Clerk of the House or the Editor of Hansard would have to come with the Official Report. We should then have the extraordinary sight of both of them attempting to justify the contents of their respective records.

Mr. Silkin

We are not dealing with the report of the Select Committee on broadcasting, but I intended to deal briefly with the point raised by my hon. Friend. Let me suggest the sort of occasions when a reference to Hansard or the report of a Committee might be required.

There might be such a need when it was desired to place before a court certain principles that had been generally accepted by Parliament. That was the position in the Crossman diaries case. It was desired to place before the court a statement of general principles on the doctrine of collective responsibility that had been published time and again in various textbooks and which were regarded by everybody as authentic. It was thought that it would help the court if that doctrine were put in in summary form. That situation could arise in a number of cases, perhaps when there is a constitutional element.

I know of no one concerned with the case who objected to quotations from textbooks, but it was thought that one should go to the source of what the textbook said; and that for that reason the ipsissima verba of the quotations from Hansard should be placed before the court.

One of the odd consequences of the way that matters proceeded in the House was that, although we could not place before the court what was said in this House, we discovered that no similar rule applied to another place and we had to make use of a similar statement made by a noble Lord in another place in order to accomplish our objective. That was one example of the sort of situation in which one might want to make use of what is said in this House. It does not seem to me to be other than highly innocuous.

Mr. Christopher Price

I accept that no party to the action objected to the papers being put in, but there was a genuine affront felt on both sides of the House by hon. Members who perhaps did not fully understand all the issues. There was a feeling that the High Court was becoming, in some way, a constitutional court over the House. That feeling led to the difficulties that my right hon. and learned Friend faced in getting Hansard produced in court.

Mr. Silkin

I would not attempt to deduce what was in the minds of the hon. Members who took exception. I certainly agree that the petition procedure can easily produce misunderstanding, and that is one reason why I should like to see it abolished. If there had been a procedure under which a simple, brief explanation could have been given, there might not have been the difficulties that occurred. They occur only rarely.

The second sort of situation in which one might need to have evidence of what had taken place in the House or in a Committee is an action for defamation against a newspaper where the defence is that what the newspaper has said was a fair and accurate report of our proceedings. It might be claimed that the report was not accurate and, therefore, what was said in the House would become a matter of issue in the courts.

My hon. Friend the Member for Nottingham, West asked what would happen if there were a difference between what appeared in Hansard, what was deduced from a tape recording and what people, including the reporter, had by way of recollection. I understand that there is no particular sanctity about Hansard in those circumstances. It is simply one piece of evidence about which, in those circumstances, it would be desirable to call the shorthand writer concerned to give evidence. If there were a genuine dispute, the parties would be unlikely to agree that Hansard should go in without his being called.

I can see no reason why there should not be any evidence that a court of law would normally accept, including that of the shorthand writer, press reporters, if they could help, and hon. Members. Whether leave of the House would be needed for hon. Members to give evidence of what was said is a matter of doubt. I see that it was asked for on one or two occasions, but I doubt whether it needs to be asked for. At any rate, no harm could be done in its being asked for. That is the answer to my hon. Friend's point. It would become a matter of evidence before the courts, and any evidence that a court was prepared to accept would be legitimate evidence.

The third and, I think, final way in which the matter might arise—though doubtless I shall be proved wrong in future, because the categories are never closed—is the way referred to by the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith), namely, when it is necessary for purposes of interpretation of the law to refer to what was said by Ministers or others in debates.

I agree with the right hon. and learned Gentleman that, as we become increasingly subject to both the law and rules of evidence that apply to European law—regulations, treaties, and so on—and as the English courts are forced to depart from their rules in dealing with ordinary English law, we shall see a need to look at the travaux préparatoires, the discussions that led to the law being changed. of which there may be some part not merely in discussions in the European Parliament but in debates in this place.

One can contemplate that there may be some difference of view as to whether Hansard reports are correct. If there were, the parties would not agree to Hansard being produced; and it would be necessary for evidence to be called. That would bring in the resolution of 1818, so that the leave of the House would be required.

My hon. Friend the Member for Nottingham, West referred at some length to another matter in his disquisition on the uncertainty of the meaning of "proceedings in Parliament". On that, I am entirely at one with him; it should be made certain. In that context, my hon. Friend suggested that it was not wholly clear whether in a court of law one could rely on what had been said in this House or in a Committee of the House—or, indeed, by a witness to a Committee of the House—in order to show that evidence that that person had given, or was giving on a different occasion, was untrue.

As I understood my hon. Friend, he said that there was no doubt that one could not attack what was said in the House but that if one looked at it the other way round and tried to use what was said here to show that something said elsewhere was untrue, there was more doubt about that. I should like to draw attention to paragraph 23 of the memorandum of the Clerk of the House given to the Committee of Privileges which produced the report. The Clerk quoted the Attorney-General of the day, in making the submissions in the Scientology case, as follows: The Attorney-General concluded his original submission by stating that there should be no reference to, no evidence of, and no submissions based on, the defendant's conduct in Parliament by any witness. The passages that had already been read from Hansard were agreed, but no evidence should be directed to them, no inferences should be drawn from them on any matter as to malice and no analysis of them in cross-examination should be allowed. As I understand it, that is the view that successive Law Officers and the courts have taken. If that is right, it deals with the point made by my hon. Friend.

However, should there be any doubt on that point, I hope that the Leader of the House—either today or when he intro- duces the legislation on the Donovan report that I have invited him to introduce in the forthcoming Session—will deal with that matter and make the position abundantly clear.

Mr. English

I think that my right hon. and learned Friend will agree that he and I are at one on what we think the law is. I am not disputing that. The point that I was trying to make was that a junior barrister who did not know a great deal about the law of Parliament—after all, his professional skill is in a different area of the law—would not normally go around looking at reports of Select Committees, memoranda by the Clerk of the House or anything of the type that my right hon. and learned Friend has just quoted. He might look at a law report, but that is as far as he would go initially. My point is that he might not even look at the law report. He might assume that as he can refer to our proceedings he can go further.

I am not in dispute with my right hon. and learned Friend over what he has just said. I am saying that somebody less skilled and less knowledgeable than he, a junior barrister who has never been in the House, might unwittingly go much further than that statement of the Attorney-General would allow.

Mr. Silkin

I am grateful to my hon. Friend for his agreement with my interpretation of the law. I followed the point that he was making earlier. It is a dilemma that must always exist. It is always possible that somebody will not know the law, or may not know the law of Parliament. I think that my hon. Friend can take it that this branch of the law, the law applied in the courts, is familiar to the judges. The Scientology case made it a great deal more familiar to them, and they would be likely to know the position today.

If my hon. Friend is saying that it is always possible that someone will not know all the law, custom and practice of Parliament, I entirely agree. For example, people might not know about the petition procedure, and then they might very well, as has happened in one or two previous cases, refer to Hansard without knowing that it is necessary—if it really is necessary—to obtain the leave of the House. That is one of the reasons why it is highly desirable to clarify that issue, on a matter that is really of insignificant importance where the parties are agreed that no harm can be done by introducing the material.

Mr. Christopher Price

I found paragraphs 22 and 23 of the Clerk's memorandum to the Committee among the most difficult to understand. If evidence is put before a jury—and it was a case in which a Member of the House was being sued in a court for defamation—does not that evidence stand, and is it not easy for a prosecuting barrister to say "I am directing no evidence to this. I am making no inference. I am making no allegation as to malice. I am not analysing it"? Does not the very context in which this stands before a jury allege malice, make inferences and direct evidence towards it? What is the point of putting in evidence that one cannot analyse or direct evidence to in any way?

Mr. Silkin

If the evidence is in the category that my hon. Friend has described, it would simply not be allowed in, because it would not be regarded as material or relevant to the issue. It would be allowed in only if the parties, by agreement and with the judge's consent, asked for it to be put in. That could be plainly on the basis of its being as it stood—that without any challenge whatever it was material to the issues. If the parties and the learned judge agreed to that, I cannot see that the difficulty to which my hon. Friend has referred would arise.

My hon. Friend's point is one of general application. It is always possible for a judge or a jury to misinterpret or misapply an observation made in court, or perhaps something that comes from a newspaper report that is placed before the court. That is a risk that one must accept in litigation, unhappily. I do not think that in this context it is very serious.

I have had a number of interventions, and as a result have been a great deal longer than I intended. The short point that I wish to make is that in the proposal now made on the basis of the report of the Committee of Privileges, which was deliberately dealing with a very narrow point, all that we are doing is to seek to get rid of an irritation, a nuisance, which, although minor, could in a particular case have serious consequen- ces. If it is not got rid of, then even where all the parties to a case and the court are agreed that no harm can be done by the introduction of a Hansard report in the proceedings of a case, they would still have to wait until the House had made a decision upon it. That could well lead to a delay in circumstances where the House did not know all the facts, as happened in the Crossman case. It would mean that the proceedings of the court might have to be adjourned unnecessarily, with all the consequent delay and expenditure and with expense to the public and the parties.

We are simply seeking to get rid of that kind of situation in totally innocuous circumstances and providing for the more controversial circumstances where there might be disagreement between the parties or where the judge might have doubts about the matter by leaving in full force and effect the provisions of the ancient resolution of 1818 whereby no Clerk or Officer of the House or shorthand writer can be required to give evidence of what has taken place here without the special leave of the House. In those circumstances, I hope that the House will pass the motion in the name of the Leader of the House.

11.21 am
The Chancellor of the Duchy of Lancaster, Leader of the House of Commons and Minister for the Arts (Mr. St. John-Stevas)

It seems a short time, Mr. Deputy Speaker, since I was standing at this Dispatch Box addressing you on the subject of the reform of our procedures. Now we are back again discussing another important but, in itself, uncontroversial issue. I should like to start by congratulating the hon. Member for Lewisham, West (Mr. Price) on his appointment to the Front Bench. He has flashed a brilliant meteor from the Back Bench to the Front Bench.

Mr. Christopher Price

And back again.

Mr. St. John-Stevas I was about to add that I understand that his progress backwards will be equally as speedy as his progress forward. Alas, he is apparently to rest silent on the Front Bench because of what I understand is a little local difficulty. Should his hon. Friend the Member for Nottingham, West (Mr. English) relent in his intentions, the House would be delighted to hear him. We are always delighted to hear the hon. Gentleman. He always adds something of importance to the debates in which he takes part. Perhaps the hon. Member for Nottingham, West could relent.

Mr. English

I have no ill will or malice towards my hon. Friend. I think that he is most unfortunate. He has been placed in this position because the Shadow Leader of the House chooses not to be present.

Mr. St. John-Stevas

The inwardness of that remark defeats me. I am a simple person. I do not understand the subtleties of the internecine war that is going on within the Labour Party. At any rate, we are delighted to have the hon. Member for Lewisham, West visible although silent on this occasion.

I should like to say to the hon. Member for Nottingham, West that I am not unsympathetic to what he says about the desirability——

Mr. English

What everybody said.

Mr. St. John-Stevas

Everybody, in fact, means only one other person.

Mr. English

The right hon. and learned Member for Hertfordshire, East (Sir. D. Walker-Smith) has already made his speech in this debate but he made it 10 months ago. The right hon. Gentleman is forgetting that this is a continuation of the same debate.

Mr. St. John-Stevas

I did not see anyone sitting in that part of the House. There seems to be a vacancy. In this debate, however, I would agree that there has been unanimity on the point. Unfortunately, this is a matter that cannot easily be disposed of. The question of privilege is very complex and the Government have not reached a view on the matter. The Government have not got propositions to put before the House. The House itself, I think, is not ready at this point to make a final decision. The upshot is that I cannot promise an early debate on the subject, but I shall bear the matter in mind.

Mr. Christopher Price

Since I am not quite as inhibited in my interventions as I am in making a proper speech now that I have been briefly translated from outer darkness into the inner light, may I ask the Leader of the House to go a little further? The right hon. Gentleman seems to be saying that he has dumped the whole issue for the next Session, at any rate. If that is what he is saying, can he be more explicit? Does he intend to try to clear up this matter in this Parliament?

Mr. St. John-Stevas

I was really leaving the issue open. I was not intending to close it. There are difficulties in the way. I cannot add to what I was saying. I will consider it further, but I could not do it today. I did consider doing it. As for the rest of the Parliament, who knows? I may be translated from inner light to outer darkness myself. I would not like to give guarantees about the whole of the Parliament.

Mr. English

I wonder whether it would help the right hon. Gentleman if I mentioned all the reports. I was trying to save the time of the House, but there is a danger that we consider only the Joint Committee on the Publication of Proceedings in Parliament. The reports listed by the Journal Office that are relevant to this subject, and only this subject, are those of the Select Committee on Broadcasting, House of Commons (1966–67)/No. 146. the Select Committee on Parliamentary Privilege, House of Commons (1967–68)/No. 34, the Joint Committee on the Publication of Proceedings in Parliament, First and Second Reports, House of Commons (1969–70)/Nos. 48 and 261, the Joint Committee on Sound Broadcasting, Second Report, House of Commons (1976–77)/No. 284, the Committee on Privileges, First, Second and Third Reports, House of Commons (1976–77)/No. 417 and (1978/79)/Nos. 102 and 222—it has not been mentioned in the debate so far that following the First Report, the Committee of Privileges went on to do a much longer report on the whole question of publication of proceedings, which has also not been debated—as well as the Faulks report on defamation (Cmnd. 5905).

Now that those are on the record, I hope that the right hen. Gentleman will realise that when I suggested a debate there was a large body of matter outstanding, all on the same subject. I do not suggest that everything in all those reports is relevant, but various portions are relevant and should be debated.

Mr. St. John-Stevas

What a doxology that was. I am afraid that I cannot go further. All the reports date from a period before I had any responsibility for the affairs of the House. I believe that we should make progress. I have at least initiated the first debate and I have placed on the Order Paper a second matter that may expedite our proceedings.

It is always a pleasure to hear the right hon. and learned Member for Dulwich (Mr. Silkin). Indeed, it is an honour in view of his eminent family connections. According to the right hon. Member for Deptford (Mr. Silkin), he is the brother of the future leader of the Labour Party. We are always delighted to listen to his reflections on legal matters. I am very glad to have his support, and I have to say to him what I said to his hon. Friend the Member for Nottingham, West: that we are making progress with this debate and that I shall review the situation again on the important matters which he raised.

Since there has been an interruption of the debate, may I remind the House again of the background to our discussions? It is the report from the Privileges Committee arising out of a case in the Central Criminal Court when reference was made to Hansard without the leave of the House having been obtained. That gave rise to the reference to the Privileges Committee, which concluded that neither the judge nor counsel for the Crown in the case concerned had made use of the Official Report in a manner which could affect the privileges of the House. However, the Committee went on to question the utility of the present practice of petitioning for leave to quote Hansard in court and to consider whether it had any meaning or validity in the new conditions prevailing at the time.

The inquiries made by the Committee revealed substantial gaps and uncertainties in the history of how the present procedure had grown up and what precise purpose it was designed to serve. The original resolution of 1818, from which the present practice stems, appears to have been concerned primarily with the requirement for the leave of the House to he granted for the attendance of its servants to give evidence in respect of House proceedings. That safeguard of the privileges of the House clearly is still necessary, but the need for the subsequent extension whereby petitioning has been required, even in the case of a straightforward reference in court to the Official Report, seems always to have been less obvious. That has been especially so since the decision of the House in 1971 not to entertain, except in certain very limited circumstances, any complaint of contempt or breach of privileges in respect of the publication of any debate or proceedings of the House or its Committees.

The change proposed, therefore, is a limited one. In no way does it affect the right of the House to free speech. It does not alter the legal position on the restrictions in the use of references to the Official Report or reports of evidence to Committees, which can be put to the courts. I hope that we can accept the motion without dissent.

I might say to the hon. Member for Lewisham, West, regrettably and uncharacteristically silent though he has been, that it gives me great pleasure to accept his amendment. That acceptance will be a memorial of his all-too-brief and Trappist appearance on the Opposition Front Bench.

Mr. Christopher Price

Before the right hon. Gentleman sits down, perhaps I might intervene to thank him graciously for his kind remarks and to say that I hope that this is the first amendment of many that he and the Government will accept from me.

Amendment agreed to.

Main Question, as amended, agreed to.


That this House while re-affirming the status of proceedings in Parliament confirmed by Article 9 of the Bill of Rights, gives leave for reference to be made in future Court proceedings to the Official Report of Debates and to the published Reports and evidence of Committees in any case in which, under the practice of the House, it is required that a petition for leave should be presented and that the practice of presenting petitions for leave to refer to parliamentary papers be discontinued.